Michael Osagie v Kingsley Onwuka & Anor

Under rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal may proceed in a party’s absence only after considering both whether the party received adequate notice and whether proceeding is in the interests of justice. Notice alone is insufficient. A failure to consider the second condition, or to give an adequate explanation when reasons are sought, is an invalid exercise of the discretion.

Nevertheless, an appellate tribunal need not set aside a decision merely because it involved a serious procedural irregularity. It must consider whether the error made the result unjust. Where the absent party had proper notice and no realistic basis to show that attendance could have changed the essential outcome, the decision may stand.

The respondents, former tenants of the appellant, obtained a rent repayment order of £12,600 from the First-tier Tribunal after it found that the appellant had unlawfully evicted them and interfered with their peace and comfort, contrary to the Protection from Eviction Act 1977.

Neither the appellant nor his representatives attended the hearing. The First-tier Tribunal stated that he had been properly notified and proceeded in his absence, but did not address whether proceeding was in the interests of justice. On appeal, the Upper Tribunal required the First-tier Tribunal panel to provide further reasons. Its response did not demonstrate that the second limb of rule 34 had been considered.

The central issue was whether that procedural error required the rent repayment order to be set aside.

1. Appeal dismissed. The First-tier Tribunal committed a serious procedural irregularity when it proceeded in the appellant’s absence without considering, or adequately explaining its consideration of, whether doing so was in the interests of justice under rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

2. Rule 34 contains two cumulative conditions. The tribunal must be satisfied that the absent party was notified, or that reasonable steps were taken to notify them, and must consider that proceeding is in the interests of justice. The latter condition requires genuine consideration. A decision made without it is not a valid exercise of the discretion. Reasons need not be lengthy, but should show that both conditions were taken into account. An omission may be cured by later specific reasons, including reasons sought by the Upper Tribunal.

3. The Upper Tribunal’s power under rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 could properly be used to seek further reasons, consistently with the approach in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Here, however, the additional response confirmed rather than cured the deficiency.

4. Under sections 11 and 12(2) of the Tribunals, Courts and Enforcement Act 2007, an error of law does not automatically require the decision below to be set aside. The tribunal must consider its consequences. The analogous requirement in CPR 52.21(3)(b) is that a serious irregularity must make the lower decision unjust.

5. The appellant and his former solicitors had received notice of the hearing. The available material also established that attendance could not realistically have altered the findings of unlawful eviction and harassment, or the First-tier Tribunal’s jurisdiction to make a rent repayment order. Although attendance might conceivably have supported a lower award, that possibility did not make the existing decision unjust. The order was therefore not set aside. The funds held by the appellant’s solicitor were to be released to the respondents.

• Upper Tribunal (Lands Chamber): dismissed the appellant’s appeal. It found a serious procedural irregularity in the First-tier Tribunal’s decision to proceed in his absence, but held that the error did not make the rent repayment order unjust.

• First-tier Tribunal (Property Chamber): on 15 September 2023 made a rent repayment order requiring the appellant to repay £12,600 to the respondents.